Madhya Pradesh High Court
Manoj Visvakarma vs The State Of Madhya Pradesh on 8 September, 2021
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.42840/2021
Manoj Vishwakarma Vs. State of M.P.
Gwalior, Dated:08/09/2021
Shri Brajmohan Mahajan, Advocate for applicant.
Smt. Padamshri Agrawal, Panel Lawyer for State.
This fourth application under Section 439 of Cr.P.C. has been
filed for grant of bail. The third application was dismissed as
withdrawn by order dated 2/11/2020 passed in M.Cr.C.
No.41498/2020.
2. The applicant has been arrested on 27/11/2017 in connection
with Crime No.418/2017 registered at Police Station Kotwali,
District Datia for offence under Sections 302, 307 of IPC.
3. It is submitted by the counsel for the applicant that the basic
law is that while deciding the bail application the Court must respect
to the life and liberty guaranteed by Article 21 of the Constitution of
India. Although the bail application of the applicant has already been
rejected thrice on earlier occasion, but he should be permitted to
argue the matter on merits. Further the witnesses have been examined
and there are material omissions and contradictions in their evidence
and under these circumstances, the applicant is entitled for bail.
4. Per contra, the application is vehemently opposed by the
counsel for the State. It is submitted that the previous bail application
have already been withdrawn. The allegations against the applicant is
that on 11/10/2017 at about 2-24 AM the mother of the complainant
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Manoj Vishwakarma Vs. State of M.P.
raised an alarm by alleging that the applicant has assaulted her by an
axe, as a result, all the inmates woke up and found that the applicant
was running away from the house alongwith an axe. The mother of
the complainant was having incised wound on her leg, whereas the
father of the complainant was having an incised wound on his neck.
The father of the complainant, namely, Rajendra had expired,
whereas the mother of the complainant was alive and she also stated
that the applicant had assaulted her by means of an axe. It is
submitted that the mother of the complainant expired at a later stage.
The statement of the mother of the complainant, namely, Urmila was
also recorded under Section 161 of Cr.P.C., however, subsequently
she expired on account of injury sustained by her, therefore, the said
statement can be treated as a dying declaration.
5. Heard the learned counsel for the parties.
6. The counsel for the applicant in a very derogatory manner had
argued that the basic law is that by rejecting the bail application, the
fundamental life and liberty guaranteed under Article 21 of the
Constitution of India should not be violated. He further submitted
that the bail application should be decided by keeping analogy in
mind that unless and until the person is convicted, he is an innocent
person. Accordingly, the counsel for the applicant was directed to
develop his arguments and to submit as to whether rejection of bail
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Manoj Vishwakarma Vs. State of M.P.
application of an under trial would be violative of Article 21 of the
Constitution of India or not.
7. It is submitted by Shri Brajmohan Mahajan that although he
has a read in this regard but he has not brought the judgments.
8. On 2.9.2021, the case was argued by Shri Brajmohan Mahajan
for more than 45 minutes. In the bail application, itself it has been
mentioned as under:
eS vf/koDrk] twfu;j vf/koDrk gwW vkSj ;g tekur
vkosnu eq> vf/koDrk ds O;kolkf;d thou dk ifgyk
tekur vkosnu i= gS] blfy;s bl bkosnu i= ds
ys[ku@M~zkfQ~Vax esa dksbZ =qfV gks rks ekuuh; U;k;k/kh'k
egksn; ls fouez fuosnu gS fd bl =qfV dks {kek djsa] vkSj
mijksDr rF;ksa ,oa vk/kkjksa ds izdk'k esa fuEukafdr vuqrks"k
iznku djus dh d`ik djsa%&
9. Since the applicant had given a declaration that it is his first
bail application which he is arguing, therefore, on 2.9.2021, this
Court after hearing the applicant at length again granted time to him
to prepare the case specifically in the light of the judgment passed by
the Supreme Court in the case of Satish Jaggi vs. State of
Chhatisgarh reported in (2007) 11 SCC 195.
10. Today, when it was found that the applicant has not brought
any judgment and is making general statements, then he was asked
that when time was granted to him to make preparation, then why he
has not done so. In reply, it was submitted by Shri Mahajan that he
did not get time because he was busy in other matters not related to
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M.Cr.C. No.42840/2021
Manoj Vishwakarma Vs. State of M.P.
advocacy.
11. Be that whatever it may.
12. The Supreme Court in the case of Lily Thomas and Others
Vs. Union of India and others reported in (2000) 6 SCC 224 has
held as under:-
61. The alleged violation of Article 21 is
misconceived. What is guaranteed under Article 21 is
that no person shall be deprived of his life and personal
liberty except according to the procedure established by
law. It is conceded before us that actually and factually
none of the petitioners has been deprived of any right of
his life and personal liberty so far. The aggrieved
persons are apprehended to be prosecuted for the
commission of offence punishable under Section 494
IPC. It is premature, at this stage, to canvass that they
would be deprived of their life and liberty without
following the procedure established by law. The
procedure established by law, as mentioned in Article
21 of the Constitution, means the law prescribed by the
legislature. The judgment in Sarla Mudgal case [Sarla
Mudgal, President, Kalyani v. Union of India, (1995) 3
SCC 635 : 1995 SCC (Cri) 569] has neither changed the
procedure nor created any law for the prosecution of the
persons sought to be proceeded against for the alleged
commission of the offence under Section 494 IPC.
The Supreme Court in the case of Sudha Singh vs. State of
U.P. and another reported in (2021) 4 SCC 781 has held as under:
10. In Prasanta Kumar Sarkar v. Ashis
Chatterjee [Prasanta Kumar Sarkar v. Ashis
Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri)
765] , it was held that this Court ordinarily would not
interfere with a High Court's order granting or rejecting
bail to an accused. Nonetheless, it was equally
imperative for the High Court to exercise its discretion
judiciously, cautiously and strictly in compliance with
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Manoj Vishwakarma Vs. State of M.P.
the ratio set by a catena of decisions of this Court. The
factors laid down in the judgment were:
(i) Whether there was a prima facie or
reasonable ground to believe that the accused had
committed the offence;
(ii) nature and gravity of accusations;
(iii) severity of the punishment in the event of
a conviction;
(iv) danger of the accused absconding or
fleeing, if granted bail;
(v) character, behaviour, means, position and
standing of the accused;
(vi) likelihood of repetition of the offence;
(vii) reasonable apprehension of the witnesses
being influenced; and
(viii) danger of justice being thwarted by grant
of bail.
The Supreme Court in the case of Harjit Singh vs. Inderjeet
Singh @ Inder and another by order dated 24/8/2021 passed in
CRA No.883/2021 has held as under:
7. We have heard the learned counsel for the
respective parties at length.
Before considering the rival submissions on
behalf of the respective parties, few decisions of this
Court on how to exercise the discretionary power for
grant of bail and the duty of the appellate court,
particularly when bail was refused by the court(s)
below and the principles and considerations for
granting or refusing the bail are required to be referred
to and considered.
7.1 In the case of Gudikanti Narasimhulu v. Public
Prosecutor, High Court of A.P., (1978) 1 SCC 240, this
Court has observed and held that deprivation of
freedom by refusal of bail is not for punitive purposes
but for the bifocal interests of justice. The nature of the
charge is a vital factor and the nature of the evidence is
also pertinent. The severity of the punishment to which
the accused may be liable if convicted also bears upon
the issue. Another relevant factor is whether the course
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of justice would be thwarted by him who seeks the
benignant jurisdiction of the Court to be freed for the
time being. The Court has also to consider the
likelihood of the applicant interfering with the
witnesses for the prosecution or otherwise polluting the
process of justice. It is further observed that it is
rational to enquire into the antecedents of the man who
is applying for bail to find out whether he has a bad
record, particularly a record which suggests that he is
likely to commit serious offences while on bail.
7.2 In the case of Ash Mohammad v. Shiv Raj Singh,
(2012) 9 SCC 446, this Court in paragraphs 17 to 19
observed and held as under:
"17. We are absolutely conscious that
liberty of a person should not be lightly dealt
with, for deprivation of liberty of a person has
immense impact on the mind of a person.
Incarceration creates a concavity in the
personality of an individual. Sometimes it causes
a sense of vacuum. Needless to emphasise, the
sacrosanctity of liberty is paramount in a
civilised society. However, in a democratic body
polity which is wedded to the rule of law an
individual is expected to grow within the social
restrictions sanctioned by law. The individual
liberty is restricted by larger social interest and
its deprivation must have due sanction of law. In
an orderly society an individual is expected to
live with dignity having respect for law and also
giving due respect to others' rights. It is a well-
accepted principle that the concept of liberty is
not in the realm of absolutism but is a restricted
one. The cry of the collective for justice, its
desire for peace and harmony and its necessity
for security cannot be allowed to be trivialised.
The life of an individual living in a society
governed by the rule of law has to be regulated
and such regulations which are the source in law
subserve the social balance and function as a
significant instrument for protection of human
rights and security of the collective. It is because
fundamentally laws are made for their obedience
so that every member of the society lives
peacefully in a society to achieve his individual
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as well as social interest. That is why Edmond
Burke while discussing about liberty opined, "it
is regulated freedom".
18. It is also to be kept in mind that individual
liberty cannot be accentuated to such an extent or
elevated to such a high pedestal which would
bring in anarchy or disorder in the society. The
prospect of greater justice requires that law and
order should prevail in a civilised milieu. True it
is, there can be no arithmetical formula for fixing
the parameters in precise exactitude but the
adjudication should express not only application
of mind but also exercise of jurisdiction on
accepted and established norms. Law and order
in a society protect the established precepts and
see to it that contagious crimes do not become
epidemic. In an organised society the concept of
liberty basically requires citizens to be
responsible and not to disturb the tranquillity and
safety which every well-meaning person desires.
Not for nothing J. Oerter stated:
"Personal liberty is the right to act without
interference within the limits of the law."
19. Thus analysed, it is clear that though
liberty is a greatly cherished value in the life of
an individual, it is a controlled and restricted one
and no element in the society can act in a manner
by consequence of which the life or liberty of
others is jeopardised, for the rational collective
does not countenance an anti-social or anti-
collective act."
7.3 In the case of State of Maharashtra v. Sitaram
Popat Vetal, (2004) 7 SCC 521, it is observed and held
by this Court that while granting of bail, the following
factors among other circumstances are required to be
considered by the Court:
1. The nature of accusation and the severity
of punishment in case of conviction and the
nature of supporting evidence;
2. Reasonable apprehension of tampering
with the witness or apprehension of threat to the
complainant; and
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3. Prima facie satisfaction of the court in
support of the charge.
It is further observed that any order dehors
such reasons suffers from non-application of
mind.
7.4 In the case of Mahipal v. Rajesh Kumar (2020) 2
SCC 118, where the High Court released the accused on
bail in a case for the offence under Section 302 of the
IPC and other offences recording the only contention
put forth by the counsel for the accused and further
recording that "taking into account the facts and
circumstances of the case and without expressing the
opinion on merits of case, this Court deems fit just and
proper to enlarge/release the accused on bail", while
setting aside the order passed by the High Court
granting bail, one of us (Dr. Justice D.Y. Chandrachud)
observed in paragraphs 11 and 12 as under:
"11. Essentially, this Court is required to analyse
whether there was a valid exercise of the power
conferred by Section 439 CrPC to grant bail. The
power to grant bail under Section 439 is of a
wide amplitude. But it is well settled that though
the grant of bail involves the exercise of the
discretionary power of the court, it has to be
exercised in a judicious manner and not as a
matter of course. In Ram Govind Upadhyay v.
Sudarshan Singh (2002) 3 SCC 598, Umesh
Banerjee, J. speaking for a two-Judge Bench of
this Court, laid down the factors that must guide
the exercise of the power to grant bail in the
following terms:
"3. Grant of bail though being a
discretionary order -- but, however, calls for
exercise of such a discretion in a judicious
manner and not as a matter of course. Order for
bail bereft of any cogent reason cannot be
sustained. Needless to record, however, that the
grant of bail is dependent upon the contextual
facts of the matter being dealt with by the court
and facts, however, do always vary from case to
case. ... The nature of the offence is one of the
basic considerations for the grant of bail -- more
heinous is the crime, the greater is the chance of
rejection of the bail, though, however, dependent
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on the factual matrix of the matter.
4. Apart from the above, certain other which
may be attributed to be relevant considerations
may also be noticed at this juncture, though
however, the same are only illustrative and not
exhaustive, neither there can be any. The
considerations being:
(a) While granting bail the court has to keep in
mind not only the nature of the accusations, but
the severity of the punishment, if the accusation
entails a conviction and the nature of evidence in
support of the accusations.
(b) Reasonable apprehensions of the witnesses
being tampered with or the apprehension of there
being a threat for the complainant should also
weigh with the court in the matter of grant of
bail.
(c) While it is not expected to have the entire
evidence establishing the guilt of the accused
beyond reasonable doubt but there ought always
to be a prima facie satisfaction of the court in
support of the charge.
(d) Frivolity in prosecution should always be
considered and it is only the element of
genuineness that shall have to be considered in
the matter of grant of bail, and in the event of
there being some doubt as to the genuineness of
the prosecution, in the normal course of events,
the accused is entitled to an order of bail."
12. The determination of whether a case is fit
for the grant of bail involves the balancing of
numerous factors, among which the nature of the
offence, the severity of the punishment and a
prima facie view of the involvement of the
accused are important. No straitjacket formula
exists for courts to assess an application for the
grant or rejection of bail. At the stage of
assessing whether a case is fit for the grant of
bail, the court is not required to enter into a
detailed analysis of the evidence on record to
establish beyond reasonable doubt the
commission of the crime by the accused. That is a
matter for trial. However, the Court is required to
examine whether there is a prima facie or
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reasonable ground to believe that the accused had
committed the offence and on a balance of the
considerations involved, the continued custody of
the accused subserves the purpose of the criminal
justice system. Where bail has been granted by a
lower court, an appellate court must be slow to
interfere and ought to be guided by the principles
set out for the exercise of the power to set aside
bail.
7.5 That thereafter this Court considered the
principles that guide while assessing the correctness of
an order passed by the High Court granting bail. This
Court specifically observed and held that normally this
Court does not interfere with an order passed by the
High Court granting or rejecting the bail to the accused.
However, where the discretion of the High Court to
grant bail has been exercised without the due
application of mind or in contravention of the directions
of this Court, such an order granting bail is liable to be
set aside. This Court further observed that the power of
the appellate court in assessing the correctness of an
order granting bail stand on a different footing from an
assessment of an application for cancellation of bail. It
is further observed that the correctness of an order
granting bail is tested on the anvil of whether there was
a proper or arbitrary exercise of the discretion in the
grant of bail. It is further observed that the test is
whether the order granting bail is perverse, illegal or
unjustified. Thereafter this Court considered the
difference and distinction between an application for
cancellation of bail and an appeal before this Court
challenging the order passed by the appellate court
granting bail in paras 13, 14, 16 and 17 as under:
"13. The principles that guide this Court in
assessing the correctness of an order [Ashish
Chatterjee v. State of W.B., CRM No. 272 of
2010, order dated 11-1-2010 (Cal)] passed by the
High Court granting bail were succinctly laid
down by this Court in Prasanta Kumar Sarkar v.
Ashis Chatterjee (2010) 14 SCC 496. In that
case, the accused was facing trial for an offence
punishable under Section 302 of the Penal Code.
Several bail applications filed by the accused
were dismissed by the Additional Chief Judicial
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Magistrate. The High Court in turn allowed the
bail application filed by the accused. Setting
aside the order [Ashish Chatterjee State of W.B.,
CRM No. 272 of 2010, order dated 11-1-2010
(Cal)] of the High Court, D.K. Jain, J., speaking
for a two-Judge Bench of this Court, held:
"9. ... It is trite that this Court does not, normally,
interfere with an order [Ashish Chatterjee v. State
of W.B., CRM No. 272 of 2010, order dated 11-1-
2010 (Cal)] passed by the High Court granting or
rejecting bail to the accused. However, it is
equally incumbent upon the High Court to
exercise its discretion judiciously, cautiously and
strictly in compliance with the basic principles
laid down in a plethora of decisions of this Court
on the point. It is well settled that, among other
circumstances, the factors to be borne in mind
while considering an application for bail are:
(i) whether there is any prima facie or
reasonable ground to believe that the accused had
committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or
fleeing, if released on bail;
(v) character, behaviour, means, position and
standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses
being influenced; and
(viii) danger, of course, of justice being thwarted
by grant of bail.
10. It is manifest that if the High Court does not
advert to these relevant considerations and
mechanically grants bail, the said order would
suffer from the vice of nonapplication of mind,
rendering it to be illegal."
14. The provision for an accused to be released
on bail touches upon the liberty of an individual.
It is for this reason that this Court does not
ordinarily interfere with an order of the High
Court granting bail. However, where the
discretion of the High Court to grant bail has
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been exercised without the due application of
mind or in contravention of the directions of this
Court, such an order granting bail is liable to be
set aside. The Court is required to factor, amongst
other things, a prima facie view that the accused
had committed the offence, the nature and gravity
of the offence and the likelihood of the accused
obstructing the proceedings of the trial in any
manner or evading the course of justice. The
provision for being released on bail draws an
appropriate balance between public interest in
the administration of justice and the protection of
individual liberty pending adjudication of the
case. However, the grant of bail is to be secured
within the bounds of the law and in compliance
with the conditions laid down by this Court. It is
for this reason that a court must balance
numerous factors that guide the exercise of the
discretionary power to grant bail on a case- by-
case basis. Inherent in this determination is
whether, on an analysis of the record, it appears
that there is a prima facie or reasonable cause to
believe that the accused had committed the crime.
It is not relevant at this stage for the court to
examine in detail the evidence on record to come
to a conclusive finding.
16. The considerations that guide the power of
an appellate court in assessing the correctness of
an order granting bail stand on a different footing
from an assessment of an application for the
cancellation of bail. The correctness of an order
granting bail is tested on the anvil of whether
there was an improper or arbitrary exercise of the
discretion in the grant of bail. The test is whether
the order granting bail is perverse, illegal or
unjustified. On the other hand, an application for
cancellation of bail is generally examined on the
anvil of the existence of supervening
circumstances or violations of the conditions of
bail by a person to whom bail has been granted.
In Neeru Yadav v. State of U.P.(2014) 16 SCC
508, the accused was granted bail by the High
Court [Mitthan Yadav v. State of U.P.[ 2014 SCC
OnLine All 16031]. In an appeal against the order
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[Mitthan Yadav v. State of U.P., 2014 SCC
OnLine All 16031] of the High Court, a two-
Judge Bench of this Court surveyed the precedent
on the principles that guide the grant of bail.
Dipak Misra, J. held:
"12. ... It is well settled in law that cancellation
of bail after it is granted because the accused has
misconducted himself or of some supervening
circumstances warranting such cancellation have
occurred is in a different compartment altogether
than an order granting bail which is unjustified,
illegal and perverse. If in a case, the relevant
factors which should have been taken into
consideration while dealing with the application
for bail have not been taken note of, or bail is
founded on irrelevant considerations,
indisputably the superior court can set aside the
order of such a grant of bail. Such a case belongs
to a different category and is in a separate realm.
While dealing with a case of second nature, the
Court does not dwell upon the violation of
conditions by the accused or the supervening
circumstances that have happened subsequently.
It, on the contrary, delves into the justifiability
and the soundness of the order passed by the
Court."
17. Where a court considering an application
for bail fails to consider relevant factors, an
appellate court may justifiably set aside the order
granting bail. An appellate court is thus required
to consider whether the order granting bail
suffers from a non-application of mind or is not
borne out from a prima facie view of the
evidence on record. It is thus necessary for this
Court to assess whether, on the basis of the
evidentiary record, there existed a prima facie or
reasonable ground to believe that the accused had
committed the crime, also taking into account the
seriousness of the crime and the severity of the
punishment. The order [Rajesh Kumar v. State of
Rajasthan, 2019 SCC OnLine Raj 5197] of the
High Court in the present case, insofar as it is
relevant reads:
"2. Counsel for the petitioner submits that the
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petitioner has been falsely implicated in this
matter. Counsel further submits that, the deceased
was driving his motorcycle, which got slipped on
a sharp turn, due to which he received injuries on
various parts of body including ante-mortem
head injuries on account of which he died.
Counsel further submits that the challan has
already been presented in the court and
conclusion of trial may take long time.
3. The learned Public Prosecutor and counsel
for the complainant have opposed the bail
application.
4. Considering the contentions put forth by
the counsel for the petitioner and taking into
account the facts and circumstances of the case
and without expressing opinion on the merits of
the case, this Court deems it just and proper to
enlarge the petitioner on bail." Thereafter this
Court set aside the order passed by the High
Court releasing the accused on bail."
Thereafter, this Court set aside the order passed
by the High Court releasing the accused on bail.
8. At this stage, a recent decision of this Court in
the case of Ramesh Bhavan Rathod v. Vishanbhai
Hirabhai Makwana (koli) 2021 (6) SCALE 41 is also
required to be referred to. In the said decision, this
Court considered in great detail the considerations
which govern the grant of bail, after referring to the
decisions of this Court in the case of Ram Govind
Upadhyay (Supra); Prasanta Kumar Sarkar (Supra);
Chaman Lal vs. State of U.P. (2004) 7 SCC 525; and the
decision of this Court in Sonu vs. Sonu Yadav 2021
SCC Online SC 286. After considering the law laid
down by this Court on grant of bail, in the aforesaid
decisions, in paragraphs 20, 21, 36 & 37 it is observed
and held as under:
"20. The first aspect of the case which stares in
the face is the singular absence in the judgment
of the High Court to the nature and gravity of the
crime. The incident which took place on 9 May
2020 resulted in five homicidal deaths. The
nature of the offence is a circumstance which has
an important bearing on the grant of bail. The
orders of the High Court are conspicuous in the
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absence of any awareness or elaboration of the
serious nature of the offence. The perversity lies
in the failure of the High Court to consider an
important circumstance which has a bearing on
whether bail should be granted. In the two-judge
Bench decision of this Court in Ram Govind
Upadhyay v. Sudharshan Singh, the nature of the
crime was recorded as "one of the basic
considerations" which has a bearing on the grant
or denial of bail. The considerations which
govern the grant of bail were elucidated in the
judgment of this Court without attaching an
exhaustive nature or character to them. This
emerges from the following extract:
"4. Apart from the above, certain other which
may be attributed to be relevant considerations
may also be noticed at this juncture, though
however, the same are only illustrative and not
exhaustive, neither there can be any. The
considerations being:
(a) While granting bail the court has to keep in
mind not only the nature of the accusations, but
the severity of the punishment, if the accusation
entails a conviction and the nature of evidence in
support of the accusations.
(b) Reasonable apprehensions of the witnesses
being tampered with or the apprehension of there
being a threat for the complainant should also
weigh with the court in the matter of grant of
bail.
(c) While it is not expected to have the entire
evidence establishing the guilt of the accused
beyond reasonable doubt but there ought always
to be a prima facie satisfaction of the court in
support of the charge.
(d) Frivolity in prosecution should always be
considered and it is only the element of
genuineness that shall have to be considered in
the matter of grant of bail, and in the event of
there being some doubt as to the genuineness of
the prosecution, in the normal course of events,
the accused is entitled to an order of bail."
21. This Court further laid down the standard for
overturning an order granting bail in the
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following terms:
"3. Grant of bail though being a discretionary
order -- but, however, calls for exercise of such a
discretion in a judicious manner and not as a
matter of course. Order for bail bereft of any
cogent reason cannot be sustained."
xxx xxx xxx
36. Grant of bail under Section 439 of the
CrPC is a matter involving the exercise of
judicial discretion. Judicial discretion in granting
or refusing bail - as in the case of any other
discretion which is vested in a court as a judicial
institution - is not unstructured. The duty to
record reasons is a significant safeguard which
ensures that the discretion which is entrusted to
the court is exercised in a judicious manner. The
recording of reasons in a judicial order ensures
that the thought process underlying the order is
subject to scrutiny and that it meets objective
standards of reason and justice. This Court in
Chaman Lal v. State of U.P (2004) 7 SCC 525 in
a similar vein has held that an order of a High
Court which does not contain reasons for prima
facie concluding that a bail should be granted is
liable to be set aside for nonapplication of mind.
This Court observed:
"8. Even on a cursory perusal the High Court's
order shows complete non-application of mind.
Though detailed examination of the evidence and
elaborate documentation of the merits of the case
is to be avoided by the Court while passing
orders on bail applications. Yet a court dealing
with the bail application should be satisfied, as to
whether there is a prima facie case, but
exhaustive exploration of the merits of the case is
not necessary. The court dealing with the
application for bail is required to exercise its
discretion in a judicious manner and not as a
matter of course.
9. There is a need to indicate in the order, reasons
for prima facie concluding why bail was being
granted particularly where an accused was
charged of having committed a serious
offence..."
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Manoj Vishwakarma Vs. State of M.P.
37. We are also constrained to record our
disapproval of the manner in which the
application for bail of Vishan (A-6) was disposed
of. The High Court sought to support its decision
to grant bail by stating that it had perused the
material on record and was granting bail "without
discussing the evidence in detail" taking into
consideration:
(1) The facts of the case;
(2) The nature of allegations;
(3) Gravity of offences; and
(4) Role attributed to the accused."
The Supreme Court in the case of Virupakshappa Gouda and
another Vs. State of Karnataka and another reported in (2017) 5
SCC 406 has held as under:-
15. The court has to keep in mind what has been
stated in Chaman Lal v. State of U.P. [Chaman Lal v.
State of U.P., (2004) 7 SCC 525 : 2004 SCC (Cri) 1974]
The requisite factors are : (i) the nature of accusation
and the severity of punishment in case of conviction
and the nature of supporting evidence; (ii) reasonable
apprehension of tampering with the witness or
apprehension of threat to the complainant; and (iii)
prima facie satisfaction of the court in support of the
charge. In Prasanta Kumar Sarkar v. Ashis Chatterjee
[Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14
SCC 496 : (2011) 3 SCC (Cri) 765] , it has been opined
that while exercising the power for grant of bail, the
court has to keep in mind certain circumstances and
factors. We may usefully reproduce the said passage :
(SCC p. 499, para 9)
"9. ... among other circumstances, the factors
which are to be borne in mind while considering
an application for bail are:
(i) whether there is any prima facie or
reasonable ground to believe that the accused had
committed the offence;
(ii) nature and gravity of the accusation;
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Manoj Vishwakarma Vs. State of M.P.
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or
fleeing, if released on bail;
(v) character, behaviour, means, position and
standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses
being influenced; and
(viii) danger, of course, of justice being
thwarted by grant of bail."
16. In CBI v. V. Vijay Sai Reddy [CBI v. V. Vijay
Sai Reddy, (2013) 7 SCC 452 : (2013) 3 SCC (Cri) 563]
, the Court had reiterated the principle by observing
thus : (SCC p. 465, para 34)
"34. While granting bail, the court has to keep
in mind the nature of accusation, the nature of
evidence in support thereof, the severity of the
punishment which conviction will entail, the
character of the accused, circumstances which are
peculiar to the accused, reasonable possibility of
securing the presence of the accused at the trial,
reasonable apprehension of the witnesses being
tampered with, the larger interests of the
public/State and other similar considerations. It
has also to be kept in mind that for the purpose of
granting bail, the legislature has used the words
"reasonable grounds for believing" instead of
"the evidence" which means the court dealing
with the grant of bail can only satisfy itself as to
whether there is a genuine case against the
accused and that the prosecution will be able to
produce prima facie evidence in support of the
charge. It is not expected, at this stage, to have
the evidence establishing the guilt of the accused
beyond reasonable doubt."
(emphasis in original)
17. From the aforesaid principles, it is quite clear
that an order of bail cannot be granted in an arbitrary or
fanciful manner. In this context, we may, with profit,
reproduce a passage from Neeru Yadav v. State of U.P.
[Neeru Yadav v. State of U.P., (2014) 16 SCC 508 :
(2015) 3 SCC (Cri) 527] , wherein the Court setting
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Manoj Vishwakarma Vs. State of M.P.
aside an order granting bail observed : (SCC pp. 514-
15, para 16)
"16. The issue that is presented before us is
whether this Court can annul the order passed
[Mitthan Yadav v. State of U.P., 2014 SCC
OnLine All 16031] by the High Court and curtail
the liberty of the second respondent? We are not
oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bedrock of the constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilised society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilised. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. [The] society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from its members, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its 20 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.42840/2021 Manoj Vishwakarma Vs. State of M.P. own whim or caprice. It has to be guided by the established parameters of law."
18. In this context what has been stated by a three- Judge Bench in Dinesh M.N. v. State of Gujarat [Dinesh M.N. v. State of Gujarat, (2008) 5 SCC 66 :
(2008) 2 SCC (Cri) 508] is quite instructive. In the said case, the Court has held that where the Court admits the accused to bail by taking into consideration irrelevant materials and keeping out of consideration the relevant materials the order becomes vulnerable and such vulnerability warrants annulment of the order.
19. In the instant case, as is demonstrable, the learned trial Judge has not been guided by the established parameters for grant of bail. He has not kept himself alive to the fact that twice the bail applications had been rejected and the matter had travelled to this Court. Once this Court has declined to enlarge the appellants on bail, endeavours to project same factual score should not have been allowed. It is absolute impropriety and that impropriety calls for axing of the order.
13. Thus it is clear that while considering the bail application apart from other conditions, the gravity of offence should also be taken into consideration. Thus it is incorrect on the part of the counsel for the applicant that irrespective of the gravity of offence, this Court must grant bail to the accused merely because Article 11 of the Constitution of India guarantees him the right of life and liberty.
14. The applicant was asked as to whether he has challenged column No.5 of Schedule 1 of Cr.P.C. by which the offence under Section 302 of IPC has been made non-bailable and whether he has challenged the legality of Section 436-A of Cr.P.C. or not, then he fairly conceded that he has not challenged the same. Once any 21 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.42840/2021 Manoj Vishwakarma Vs. State of M.P. offence has been made non-bailable and as per provision of Section 436-A of Cr.P.C., an under trial cannot be kept in jail beyond half of the maximum sentence provided for an offence for which he is facing trial coupled with the fact that Article 21 of the Constitution of India is subjected to reasonable restrictions then the accused who is facing charge for killing two persons cannot claim that irrespective of the allegations against him he should be granted bail.
15. Considering the totality of the facts and circumstances of the case, this Court is of the considered opinion that no case is made out for grant of bail. The application fails and is hereby dismissed.
(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2021.09.09 14:47:03 +05'30'